On April 12, 2013 the First District Court of Appeal issued its decision in Golden Gate Land Holdings, LLC v. East Bay Regional Park Dist. (2013) ___Cal.App.4th___ (Case No. A135593).  The court upheld the trial court’s decision to allow, pursuant to Public Resources Code section 21168.9, severable, existing project activities to go forward while CEQA defects relating to future project activities were remedied.

The case involved the acquisition of land for a trail improvement project in the East Bay. The East Bay Regional Park District adopted a resolution of necessity to condemn eight acres along the shoreline owned by Golden Gate Land Holdings (GGLH). The district sought to acquire this land to complete a shoreline park and to construct a segment of the San Francisco Bay Trail. The district found the project was categorically exempt from CEQA. GGLH sued, arguing the district should have prepared an EIR. The trial court agreed and granted the petition, but did not direct the district to rescind its resolution of necessity. The court instead ordered the district to vacate only its CEQA exemption finding, permitting the district to leave its resolution of necessity intact and proceed with its condemnation action. The trial court ordered, however, that the district must not actually acquire the property without first complying with CEQA.

On appeal, GGLH argued the trial court’s remedy was improper. It argued that, after concluding the district had violated CEQA, the trial court was required to direct the district to vacate all project-related approvals, including its resolution of necessity. GGLH argued that the district’s CEQA violation—an improper conclusion that the project was categorically exempt— encompassed the whole of the district’s decision and there was no way to distinguish one aspect of the project from another. Thus, according to GGLH, the trial court should not have allowed any portions of the project to proceed under Public Resources Code section 21168.9. The Court of Appeal disagreed.

According to the court, the entire “project” consisted of acquiring and developing the shoreline property for public recreation.  Project activities, however, could be parsed and consisted of initiating eminent domain proceedings, acquiring the land, and constructing the improvements.  The court held that the first activity – launching the condemnation process by adopting a resolution of necessity – could properly be severed from the remainder of the project under section 21168.9.  It would not cause impacts and there was no evidence that, by continuing the eminent domain proceedings, the district would prejudice its future consideration or implementation of alternatives or mitigation measures.  In particular, allowing that action to proceed would not prejudice the district’s CEQA analysis, so long as the district did not commit to a particular trail alignment by actually acquiring the land prior to completing the CEQA process.  Similarly, construction of the park and trail improvements could not occur until after the district completed the CEQA process.  Thus, the trial court did not misinterpret section 21168.9, or abuse its discretion in exercising its equitable powers by issuing a limited writ and allowing the eminent domain proceedings to continue.